Yesterday, the U.S. Supreme Court struck down President Obama’s recess appointments of three members of the National Labor Relations Board, invalidating more than a thousand NLRB decisions rendered between January 2012 and January 2013. The long-awaited decision in NLRB v. Noel Canning affects several board decisions that were particularly troubling for employers including those limiting employers’ social media and confidentiality policies and preventing employers from discontinuing union dues check-offs after the expiration of collective bargaining agreements. Although the NLRB may reissue many of those decisions, limiting Noel Canning’s ultimate effect, the decision curtails the President’s recess appointment power which will have long-term consequences, especially in times of partisan gridlock.
The case stems from a 2012 dispute over a collective bargaining agreement. After losing at the NLRB, Pepsi-Cola distributor Noel Canning appealed the order to the D.C. Circuit, challenging the recess appointments of three of the NLRB members who took part in the decision. The court of appeals agreed the appointments were invalid and set aside the NLRB’s order. It held the appointments, made between pro forma sessions of the Senate in January 2012, did not comply with the Recess Appointments Clause. Specifically the court of appeals held that the term “recess” did not include the intra-session breaks within formal Senate sessions and that vacancies that arose prior to a recess, both aspects at issue in the case, were not within the scope of the Clause. The Supreme Court, in its first opportunity to interpret this Clause, affirmed the judgment of the D.C. Circuit but on different grounds.
As a preliminary matter, the Court noted, in an opinion authored by Justice Breyer, that the Recess Appointments Clause “sets forth a subsidiary, not a primary method for appointing officers of the United States,” and it does not grant the President the authority to regularly avoid Senate approval. Furthermore, in evaluating the questions presented under this Clause, great weight was placed upon historical practice and the Court was hesitant to “upset the compromises and working arrangements” that the Executive and Legislative branches have reached over the years. The Court’s opinion addressed three fundamental questions revolving around the Clause and provided a wealth of historical background on presidential recess appointments.
First the Court broadly interpreted the term “the recess of the Senate” to mean inter-session (between formal sessions) and intra-session (within formal sessions) recesses could trigger the Recess Appointments Clause. The court highlighted the fact that as the Senate’s intra-session breaks increased in frequency over time, so did intra-session recess appointments. The Court then decided how long an intra-session break needed to be for it to be considered a recess under the Clause. Justice Breyer set it at 10 days, and said the presumption that any recess shorter than 10 days would not trigger the Clause could be overcome by “unusual circumstances.”
Second, the Court addressed whether the President could use his recess appointment power to fill vacancies that had arisen before the recess, not just during the recess. The Court concluded, despite Justice Scalia’s withering concurrence to the contrary, that tradition supported this practice.
Finally, the Court focused on the fact that the NLRB members were appointed pro formasessions, not regular ones. The question, then, was whether those were actual formal sessions or simply an extended recess. The Court said “the Senate is in session, when it says it is.” Although the Court was willing to defer to the Senate’s determination, the Senate also must have the capacity to act for it to be in session. Because the Senate had the power to conduct business and did in fact pass a bill during the pro forma sessions, the Court refused to inquire any further. Since the Senate was deemed to be in session, the NLRB appointments were made during a three-day adjournment – fewer than the 10 days needed to constitute a recess. As such, the Recess Appointments Clause had not been triggered and the President did not have the power to appoint the three NLRB members.
It remains to be seen which of the decisions rendered invalid by Noel Canning will be reconsidered and reissued by the NLRB. Accordingly, employers may not want to make any sudden moves in their labor relations strategies in response to this decision.